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Florida’s lethal-injection drug gets Supreme Court nod

June 29, 2015

The Supreme Court’s decision Monday to uphold the use of a controversial drug in lethal-injection executions will have ramifications for the 395 people on Florida’s death row as well as on the upcoming execution of a man who killed four family members in Orlando in 1985.

Florida Supreme Court justices stayed the Feb. 26 execution of Jerry Correll pending the high court’s ruling over midazolam — the first drug administered during a three-step process to execute inmates in a handful of states, including Florida.

Monday’s decision prompted a motion from Florida officials state to lift the stay.

Executions in other states have raised concerns the sedative did not perform its intended task of putting inmates into a comalike sleep. Correll’s attorneys argued that point in an emergency motion to delay his execution at least until the Supreme Court offered its opinion. A jury convicted their client of stabbing and killing his 5-year-old daughter, ex-wife, mother-in-law and sister-in-law.

But Monday’s ruling just preserves the status quo in Florida and in the other 31 states that use capital punishment, said Orlando attorney Steven Laurence. It means midazolam can be used in executions without violating the Eighth Amendment prohibition on cruel and unusual punishment.

“The Florida Supreme Court acknowledged when they granted a stay that there has been some issues [with the drug], and they wanted to the U.S. Supreme Court to speak to that issue,” said Laurence, who’s been trying death-penalty cases at the state Supreme Court for more than a decade.

“Now they’ve spoken to that issue, and from the perspective of a Florida practitioner such as myself, it’s back to business as usual.”

Florida remains among the most active states using the death penalty, putting 16 people to death in the past three years, according to the Death Penalty Information Center, a national nonprofit research group.

Florida Gov. Rick Scott has signed more death warrants than any other modern Florida governor in a single term.

The Orange-Osceola State Attorney’s Office is seeking the death penalty in seven cases this year, according to a spokeswoman. Defendants in those cases include Sanel Saint Simon, the Orange County man accused of beating his girlfriend’s 16-year-old daughter to death, and Bessman Okafor, the suspected mastermind behind a witness-execution plot.

This won’t be the last time a U.S. Supreme Court ruling affects Florida’s death penalty.

The high court agreed to hear in its next term a case called Hurst v. Florida, a challenge to the state’s procedure for determining a death sentence.

Florida is the only state that doesn’t require a unanimous jury to recommend death. Rather, a majority vote, after a special hearing on factors that could justify or mitigate the death penalty, will send a convict to death row.

A trial judge must either approve or reject that recommendation.

Laurence said this case has a better chance at affecting Florida’s procedures because the practice is an outlier among other states.

“It seems contrived that to find a person guilty of the death penalty requires a unanimity, but to actually execute them does not,” he said. “To me, that’s a much more compelling issue.”

In its ruling on Correll’s execution, Florida Chief Justice Jorge Labarga wrote in the majority opinion that the stay was justified because the Oklahoma protocol under review by the U.S. Supreme Court is “virtually identical” to Florida’s process.

“Without the stay of execution in this case, Florida risks the unconstitutional execution of Correll, for which there is no remedy.”

Clarification came Monday in a 5-4 decision by the Supreme Court as two dissenting justices said for the first time that they think it’s “highly likely” that the death penalty itself is unconstitutional.

Justice Samuel Alito said arguments the drug could not be used effectively as a sedative in executions are speculative.

In dissent, Justice Sonia Sotomayor said, “Under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake.”

In a separate dissent, Justice Stephen Breyer said the time has come for the court to debate whether the death penalty itself is constitutional. Justice Ruth Bader Ginsburg joined Breyer’s opinion.